Delhi High Court
Good Living And Healthy ... vs ............ on 15 September, 2014
$~17
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 123/2014
IN THE MATTER OF
GOOD LIVING AND HEALTHY ENVIRONMENT
CONSTRUCTIONS PVT LTD .....Petitioner
Through: Mr. Rajeev K Goel and Mr.
Naresh Kumar, Advocate for the
Petitioner.
Mr. Balbir Singh, Sr. Standing
Counsel with Mr. Abhishek
Singh Baghel, Advocate for
Income Tax Department.
Mr. Rajneesh Kumar Singh,
Assistant Registrar of Companies
for the Regional Director.
Mr. S.B Gautam, the Official
Liquidator.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 15.09.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint petition has been filed under
sections 391 to 394 of the Companies Act, 1956
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("Act") seeking sanction of the Scheme of
Amalgamation ("Scheme") of Good Living and
Healthy Environment Constructions Pvt Ltd
(hereinafter referred to as Transferor Company No. 1)
and Emerald Homes Pvt Ltd (hereinafter referred to as
Transferor Company No. 2) (hereinafter collectively
referred to as Transferor Companies) with Hyline
Buildtech Pvt (hereinafter referred to as Transferee
Company) (hereinafter all Companies collectively
referred to as Petitioner Companies). A copy of the
Scheme has been enclosed with the Petition.
2. The registered office of the Petitioner Companies is
situated at New Delhi, within the jurisdiction of this
Court.
3. The details of the respective dates of incorporation of
the Petitioner Companies, their authorized, issued,
subscribed and paid up capital have been given in the
Petition.
4. The copies of the Memorandum and Articles of
Association as well as the Annual Accounts of the
Petitioner Companies for the year ended 31 st March
2013 have also been enclosed with the Petition.
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5. The copies of Resolutions passed by the Board of
Director of the Petitioner Companies approving the
Scheme of Amalgamation have also been filed along
with the Petition.
6. Learned Counsel for the Petitioner Companies submits
that no proceedings under sections 235 to 251 of the
Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Companies had earlier filed C.A (M) 17
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
22nd January, 2014, this Court allowed the Application
and requirement of convening the meetings of the
Shareholders and Creditors of the Transferor
Companies and the Transferee Company were
dispensed with.
8. The Petitioner Company had thereafter filed the present
Petition seeking sanction to the Scheme of
Amalgamation. Vide Order dated 21 st February 2014,
notice of the Petition was directed to be issued to the
Regional Director, Northern Region and the Official
Liquidator attached with this Court. Citations were also
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directed to be published in "Business Standard"
(English, Delhi Edition) and "Dainik Bhaskar" (Hindi,
Delhi Edition). Affidavit of Service and Publication has
been filed by the Petitioner showing compliance
regarding service of the Petition on the Regional
Director, Northern Region and the Official Liquidator,
and also regarding publication of citations in the
aforesaid newspaper. Copies of the newspaper cuttings,
containing the publications have also been filed along
with the Affidavit of Service.
9. In response to the notice issued, the Official Liquidator
sought information from the Petitioner Companies.
Based on the information received, the Official
Liquidator has filed his Report dated 20 th May 2014,
wherein he has stated that he has not received any
complaint against the proposed Scheme from any
person/party interested in the Scheme in any manner
and that the affairs of the Transferor Companies do not
appear to have been conducted in a manner prejudicial
to the interest of its members, creditors or to public
interest as per the 2nd proviso of section 394(1) of the
Act.
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10. In response to the notice issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
14 th August, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor
Companies shall become the employees of the
Transferee Company without any break or interruption
in their services.
11. Further learned Regional Director in his A ffidavit has
observed that Income Tax Officer (Hqrs.), CIT (IV)
vide its Letter dated 15.04.2014 had forwarded a L etter
dated 04.04.2014 issued by Income Tax Officer, Ward
12(2) stating that the assessment proceedin gs under
Section 143(2) were pending against the Assessee
Transferor Company No.1 for the year 2012 -2013.
The Income Tax Department has requested that the
Scheme of Amalgamation may be kept in abeyance till
the completion of assessment proceedings, as t he
amalgamation proceedings may create technical
problems in the assessment proceedings .
12. By Order dated 28.08.2014, notice was issued to the
Chief Commissioner, Income Tax through Standing
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Counsel, Income Tax, Delhi High Court. Mr. Balbir
Singh, Standing Counsel, Income Tax, on instructions,
submits that the Income Tax has no objection to the
sanction of the scheme subject to the right of the
Income Tax authorities to continue assessment and
proceedings, if any, against the Transferee Company
and the Transferee Company undertaking to discharge
the liability, if any of the Transferor Company.
13. In response to the aforesaid observation, the learned
counsel for Petitioner Companies submits that Para
„2.c‟ of the Scheme already provides that all liabilities,
provisions, duties and obligations including Income
Tax and other statutory liabilities, if any, of every kind,
nature and description of the Transferor Companies,
whether provided for or not in the books of accounts of
the Transferor Companies, shall devolve and shall
stand transferred or be deemed to be transferred
without any further act or deed, to the Transferee
Company and shall be the liabilities, provisions, duties
and obligations of the Transferee Company. Leaned
Counsel for Petitioner Companies further submits that
Para „4‟ of the Scheme also provides that all legal
proceedings of whatever nature by or against the
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Transferor Companies pending on the Effective Date,
shall not be abated, be discontinued or be, in any way,
prejudicially affected by reason of the transfer of the
undertaking of the Transferor Companies or of
anything contained in this Scheme but the proceedings
may be continued, prosecuted and enforced by or
against the Transferee Company in the same manner
and to the same extent as it w ould or might have been
continued, prosecuted and enforced by or against the
Transferor Companies as if the Scheme had not been
made.
14. It is clarified that the Income Tax Department is free to
proceed against Transferee Company in respect of any
liability arising out of the assessment of the Transferor
Company despite the sanction of the S cheme.
15. In view of the aforesaid undertaking and clarifications
given by the Petitioners, the concerns of the Regional
Director have been duly addressed.
16. No objection has been received to the Scheme from any
other party. Mr. Sudershan Malik, Director of the
Transferee Company has filed an Affidavit dated 22 nd
May 2014 confirming that neither the Petitioner
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Companies nor their Counsel has received any
objection pursuant to citations published in the
newspapers.
17. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies,
representation/report filed by the Regional Director,
Northern Region and Official Liquidator attached with
this Court to the proposed Scheme, there appears to be
no impediment to the grant of sanction to the Scheme.
Consequently, sanction is hereby granted to the Scheme
under sections 391 and 394 of the Companies Act,
1956, subject to the sanction of the Scheme by the
Gujarat High Court. The Petitioner Companies will
comply with the statutory requirements in accordance
with law.
18. Certified copy of the order will be filed with the
Registrar of Companies within 30 days from the date of
receipt of the same. In terms of the provisions of
sections 391 and 394 of the Companies Act, 1956, all
the properties, rights and powers of the Transferor
Companies be transferred to and vest in the Transferee
Company without any further act or deed. Similarly, in
terms of the Scheme, all the liabilities and duties of the
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Transferor Companies be transferred to the Transferee
Company without any further act or deed. Upon the
Scheme coming into effect, the Transferor Companies
shall stand dissolved without winding up.
19. It is, however, clarified that this order will not be
construed as an order granting exemption from
payment of stamp duty or taxes or any other charges, if
payable in accordance with any law; or permission/
compliance with any other department which may be
specifically required under any law.
20. Learned Counsel for the Petitioner states that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 75,000/- in the Common Pool fund
of the Official Liquidator within three weeks from
today. The statement is accepted.
21. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 15, 2014
st
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